Introduction
I agree with the statement that the current law relating to medical negligence indeed does not serve the interests of claimant. If a medical professional harmed a patient through negligent conduct, the medical professional would potentially face both legal consequences and a civil action. In order for the claimant to bring the action through the tort of negligence, he would have to prove 3 things. This could be a hassle because it is a long process and difficult to satisfy the second criteria which is to prove that the professional breached the duty of care.
Bolam Test
In the law of negligence, the test that is used to show on the balance of probabilities that the defendant has acted as a reasonable person would be the Bolam test from the case of Bolam v Friern. In this case, the plaintiff Mr. Bolam suffered fractures as a result of the administration of electro-convulsive theraphy without anaesthetic. There were 2 school of thoughts. First one holding the view that relaxant drugs should be used before such treatment and another view that their used only increased the risk. Hence the question here is should Mr. Bolam been restrained or warned of the risks? This is where McNair J explained that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art. The doctor is also not negligent if he is acting in accordance with such a practice merely because there is a body that takes a contrary view. Oddly enough, this test is not looking whether the doctor has acted in the ideal way, but rather whether his or her actions are above the minimal acceptable practice.
Bolam test was much needed as it discourages litigation. Litigation is costly and slow, NHS Litigation Authority states that the average time taken for recent claims is 1.25 years. It takes a long time to compensate the patient for their loss and for the medical professionals a long wait before they can ‘clear their names’.
Bolam test is commonly used now but it has its weaknesses. First of all, it seems that the medical profession is setting the legal standard requirements for doctor rather than the courts. In Hill v Potter, Hirst J stressed that by adopting the Bolam principle, the court in effect abdicates its power of decision to the doctors. Though, the incidents of Alder Hey and Bristol scandals clearly shows that the medical profession is in need of law to set standards rather than the medical profession itself. The Bolam test itself is extremely difficult for the claimant to fulfil. It has put an almost impossible burden on claimants as all the defendant needed to do to win the case is to find an acknowledged expert to agree that the way in which the defendant dealt with the patient was within the range of acceptable practice. Whereas the claimants would need to interview every expert in the relevant field and told by each one that the alleged conduct is negligent. The law clearly appears to be more concerned with protecting the reputation of the professional than ensuring that the patient receives compensation if he has been badly treated.
Thus, the appearance of the case of Bolitho v City gave an illusion to the the progression of Bolam test. Unfortunately, Bolitho did not have a dramatic impact on the law simply because it is highly unlikely a judge will declare the medical opinion illogical or unrespectable. In this case, Lord Browne-Wilkinson’s dictum suggests that simply because a medical expert declares that what the defendant did was acceptable, it does not mean that the judge must accept that the defendant was not negligent.
As contrasted with Ecclestone v Medway, Silber J said that it would be very seldom to be right for a judge to regard a competent medical experts views as unreasonable. Typically, cases after Bolitho do not cite it and simply refer to Bolam test as the courts might not regard it as having made a change of any great significance. In the case of Burne v A, it was held that the judge could reject the views of the experts on what is responsible course of conduct but before doing so, the experts must be given the chance of justifying the practice. In instances where by there is a conflict between experts on whether the conduct of the defendant was in accordance with a respectable body of opinion, the judge must explain which expert is preferred and why.
NHS Redress Act 2006
The complaints made toward medical professional would be dealt by NHS Litigation Authority as they are responsible for overseeing the financial compensation. However, the NHS Litigation Authority was more concerned with dealing with the complaint in a cost-effective way than with ‘clearing the name’ of the doctor against whom a complaint has been made. Hence, in light of the complaints about the current system, the government sought to reform. The complaints consist of it being costly in legal fee and having a negative effect on NHS staff morale and on public confidence. One of the possible reason to reform would be that patients are highly dissatisfied with the lack of explanations and apologies that the action has been taken to prevent the same incident happening to another patient.
The government sought to reform through NHS Redress Wales Act 2001. It has yet to be implemented in England possibly depending on its success of the scheme in Wales. This scheme requires the commissioners of hospital services to put in place a consistent, speedy and appropriate response to clinical negligence. The government also argues that the scheme will attempt to move away from focusing on attributing blame and instead focus on preventing harm, reducing risks and leaving from mistakes which was essentially one of the main focus of this reform to address these major flaws in the current system. The government indicated that it expects the scheme initially to attract higher costs because more patients will receive compensation. Nonetheless, it believes that, overtime, these costs will be offset by the saving in legal costs because fewer cases resorting to litigation. To put it simply, this will not save cost if this scheme only attracts those who otherwise could not afford litigation.
Saatchi Bill
Lord Saatchi proposed this bill upon the death of his wife from ovarian cancer. He believes that a prevailing fear of litigation for negligence has stifled progress in cancer treatment and that her death was wasted because it did not help advance scientific understanding. His private member’s bill intends to encourage responsible innovation by providing legal protection for doctors who try untested treatment on patients where conventional treatments have failed. Supporters of the bill claim that it will provide legal clarity, liberating doctors to innovate free fear of litigation. This will encourage responsible innovation and could lead to major breakthrough in medicine. The bill has addressed these concerns by providing safeguards to mandate doctors and having a data-base to ensure that information on outcomes is publicly available.
Despite a widespread opposition to the bill, it is argued that the current law is not an obstacle to responsible innovation. The current law allows doctors to prescribe unlicensed drugs as they did for patients with Creutzfeldt-Jakob disease (Simms v Simms 2002). Moreover, quite the contrary to Saatchi’s claims, medical innovation is thriving in the UK, perhaps more than anywhere else in the world. Current approaches have contributed to a 37% fall in breast cancer mortality in the UK in the past 40 years. Furthermore, the bill may have unintended consequences. For instance, vulnerable patients may be subjected to reckless treatments, opening door to quackery. According to Michael Baum from The BMJ, he said that the bill would possibly remove the current safeguards and be likely to add another layer of bureaucracy that would inhibit progress. James from The BMJ also added that the current “professional consensus” defence which is the Bolam test already accommodate innovation by minority opinions. It could be seen in the case of De Freitas v O’Brien 1995 that professional consensus approved a 1% minority opinion in favour of spinal surgery despite a large majority of neurosurgeons disapproving the surgery.
The problem here is why enact a bill instead of educating the doctor from the very beginning? If the doctors’ perception is the problem, besides changing the law, softer solutions are available such as clarification and codification by professional bodies. This is probably why the bill drew critical response from some medical and legal bodies in the beginning and took years to come into fruition. However, the bill seeks to clarify the legal freedoms of doctors and even if it did not effect a substantive change in the law, it may influence how doctors perceive the law.
Conclusion
To conclude, the law is constantly changing, being interpreted or redefined to ensure that the law constantly reflects changes in society itself especially as the medical technology advances over time.